The Grand Chamber of the Court of Justice of the European Union (CJEU) has delivered its judgment in the landmark case of Saeedi/NS (C411/10) deciding fundamental questions about Member States' obligations under the EU Charter of Fundamental Rights and whether the Charter binds the UK. 13 Member States intervened along with the European Commission, UNHCR, the Equality and Human Rights Commission, Amnesty International/AIRE. An Irish reference, ME, was joined with NS.

The case concerned a challenge by Mr Saeedi to his transfer to Greece under the Dublin Regulation which enables Member States to transfer asylum seekers to the first EU country they entered. The Court observed that According to [Mr Saeedi], the Greek authorities detained him for four days and, on his release, gave him an order to leave Greece within 30 days. He claims that, when he tried to leave Greece, he was arrested by the police and was expelled to Turkey, where he was detained in appalling conditions for two months. He states that he escaped from his place of detention in Turkey and travelled from that State to the United Kingdom, where he arrived on 12 January 2009 and where, that same day, he lodged an asylum application. (para 35)

Mr. Saeedi challenged his removal to Greece by judicial review relying on the EU Charter of Fundamental Rights.

The Administrative Court accepted that Greece did not comply with EU law and would detain him in bad conditions and/or leave him destitute without offering an effective examination of his asylum claim. However, it considered itself bound by previous UK and Strasbourg caselaw to dismiss the claim. He appealed to the Court of Appeal which referred it to the CJEU due to the difficulty and importance of the case.

The Grand Chamber's ruling was handed down on 21st December 2011 deciding a number of fundamental issues.

No UK 'opt out' from the Charter The UK along with Poland had negotiated a Protocol to the Lisbon Treaty (which made the Charter binding) that then Prime Minister Tony Blair claimed was an opt-out. At the summit which agreed the Lisbon Treaty, the BBC reported: "The four essential things that we in the UK required in order to protect our position have all been obtained," said Tony Blair at the end of his last EU summit as British prime minister. "Those were first of all to make it absolutely clear that the charter on fundamental rights was not going to be justiciable in British courts or alter British law."

The Grand Chamber held that "Article 1(1) of Protocol (No 30) ... does not intend to exempt the Republic of Poland or the United Kingdom from the obligation to comply with the provisions of the Charter or to prevent a court of one of those Member States from ensuring compliance with those provisions." It said there was no need to rule on the interpretation of Article 1(2) of the Protocol as that applied only to Title IV of the Charter which was not relevant to the present case.

The safe third country deeming provision is incompatible with EU Charter The Grand Chamber has also held that the controversial safe third country deeming provision in UK primary legislation is incompatible with EU fundamental rights and therefore contrary to EU law. The deeming provision prevented UK courts from declaring unlawful and quashing the removal of asylum seekers to other EU Member States on the basis that defects in other EU states' asylum systems created a real risk of expulsion from the receiving state in violation of the Refugee Convention and EU law. (In Nasseri, the Court of Appeal and House of Lords had reversed the declaration of incompatibility granted by the Administrative Court under the Human Rights Act in relation to the deeming provision.)

UK may not apply conclusive presumption that other Member States respect fundamental rights
The Grand Chamber decided that Member States' duties under the Charter override principles of mutual trust between Member States. Member States were therefore not entitled to apply a conclusive presumption (based on principles of mutual trust between Member States) that other Member States complied with fundamental rights.

The Court observed that: At issue here is the raison d'être of the European Union and the creation of an area of
freedom, security and justice and, in particular, the Common European Asylum System, based on mutual confidence and a presumption of compliance, by other Member States, with European Union law and, in particular, fundamental rights. (para 83)

It accepted that: as stated by N.S., were Regulation No 343/2003 to require a conclusive presumption of compliance with fundamental rights, it could itself be regarded as undermining the safeguards which are intended to ensure compliance with fundamental rights by the European Union and its Member States. That would be the case, inter alia, with regard to a provision which laid down that certain States are 'safe countries' with regard to compliance with fundamental rights, if that provision had to be interpreted as constituting a conclusive presumption, not admitting of any evidence to the contrary... (T)he mere ratification of conventions by a Member State cannot result in the application of a conclusive presumption that that State observes those conventions... In those circumstances, the presumption underlying the relevant legislation, stated in paragraph 80 above, that asylum seekers will be treated in a way which complies with fundamental rights, must be regarded as rebuttable. In the light of those factors, the answer to the questions referred is that European Union law precludes the application of a conclusive presumption that the Member State which [is responsible for examining an asylum claim under the Dublin Regulation] observes the fundamental rights of the European Union. (para 100-105)

Some of the Member States that intervened at the hearing had objected that they were in no position to assess the risk that other Member States would breach fundamental rights but the Court rejected their claim. It held that they could use the same kind of country information as the European Court of Human Rights in order to assess the functioning of the asylum system in the Member State responsible, making it possible to evaluate those risks. (para 91)

It concluded that Article 4 of the Charter (which is equivalent to Article 3, ECHR) precluded the transfer of asylum seekers under the Dublin Regulation where systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of that provision. As the European Court of Human Rights had, since the Court of Appeal made the reference, found that such deficiencies existed in Greece, it was now clear that the UK would violate Article 4 of the Charter if it transferred asylum seekers to Greece and the other articles of the Charter relied upon by Mr Saeedi did not lead to a different answer (paras 112-114)

The Court emphasised that where a Member State such as the UK could not transfer an asylum seeker to the responsible state, here Greece, then it must ensure that it does not worsen a situation where the fundamental rights of that applicant have been infringed by using a procedure for determining the Member State responsible which takes an unreasonable length of time. If necessary, it must itself examine the application.

The legal team for N.S. (Mr Saeedi) are Dinah Rose QC, Mark Henderson and Alison Pickup of counsel instructed by Sonal Ghelani of the Migrants' Law Project at Islington Law Centre. Mr Saeedi was previously represented by Roopa Tanna at Refugee and Migrant Justice until it went into administration in June 2010 due to legal aid cuts and then by Sheona York at Immigration Advisory Service Prior until that organisation too went into administration due to legal aid cuts in July 2011.

The Charter of Fundamental Rights, a political declaration agreed in 2000 and then in a slightly amended form included in the Constitutional Treaty, was not incorporated in the Treaty of Lisbon but has been by the EU institutions and then referred to in the Lisbon Treaty.

The adoption of the Charter as a legal text represents an important change in the EU's human rights framework but the effects of its adoption may not be as extensive as some have suggested. The United Kingdom and Poland obtained the agreement of the other Member States to a further protocol to the Lisbon Treaty which seeks to restrict the interpretation of the Charter by the European Court of Justice and their domestic courts (this is sometimes mistakenly described as an "opt-out").

This briefing explains the history of the Charter, identifies its key provisions, considers the effects of its adoption and explains the British and Polish additional protocol.

About Me

JK Adebola is the CEO of JK & Co Legal Consult Ltd. A private legal firm specialising in Immigration, Nationality and Human Rights Law. Migrantswatch UK is a blog set up to enlighten Migrants in the UK and to keep them abreast of the constant changes to Immigration Rules and Legislation.
JK & Co Legal Consult Ltd is accredited by the Office of the Immigration Services Commissioner [OISC] to provide Immigration Advice and Services.